ITEM08 C15-2026-0005 ADV PACKET APR13 PERMIT HOLDER PART1 — original pdf

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CASE NO. C15-2026-0005 Madam Chair Cohen and Members of the Board of Adjustment City of Austin 301 West 2nd Street Austin, Texas 78701 RESPONDENT’S POSITION STATEMENT IN OPPOSITION TO THE REQUEST FOR RECONSIDERATION TO THE HONORABLE BOARD OF ADJUSTMENT: COMES NOW, JBD CR HOLDING LLC ("Respondent" or "Property Owner"), by and through its undersigned counsel, and files this Position Statement in Opposition to the Request for Reconsideration filed by the opposing party ("Appellant"). Respondent respectfully requests that the Board of Adjustment ("Board" or "BOA") deny the reconsideration request outright and uphold its prior decision to affirm the issuance of Permit No. 2025-140201 PR. I. The Appellant’s Burden and the Strict Standard for Reconsideration Because the Board has already heard and decided this matter in favor of the Respondent, the Appellant's current filing is procedurally governed by the rules for Reconsideration under Article V, Section (F)(4) of the BOA Rules of Procedure. In any standard appeal, the Appellant bears the heavy burden of proving that the administrative official's decision was erroneous. However, in a Request for Reconsideration, that burden is significantly elevated. According to the Board's explicit rules, a request to reconsider must "state how the Board erred in its determination," "state why the action should be reconsidered," and critically, must "be supported by new or clarified evidence." Furthermore, the rules dictate that the Board shall only grant a reconsideration if there was an error in its original determination or "on the basis of new or clarified evidence not presented to the Board at the original hearing that might affect its determination." This means the Appellant has an affirmative duty to conduct new research and provide specific, material facts that were previously unavailable. A reconsideration request is not a venue for a party to simply express disagreement with a ruling or re-litigate the same arguments they already lost. ITEM08/1-PERMIT HOLDERII. Failure to Provide New Information or Meet the Burden of Proof The Appellant has thoroughly failed to meet this strict evidentiary threshold. The current filing provides no newly researched information and introduces no specific, clarifying evidence that was absent from the original hearing. Instead, the Appellant merely recycles the exact same unfounded speculations regarding technical building codes, bedroom counts, and FAR limits that this Board has already reviewed and properly dismissed. As previously established, the Board's jurisdiction is strictly limited to zoning matters, and it does not have the authority to hear appeals regarding the International Residential Code (IRC) or the International Fire Code (IFC). The Appellant's continued grievances rely almost exclusively on technical interpretations of these codes. Furthermore, the Appellant fails to meet their burden by relying entirely on speculation that the Owner might misuse the property in the future by converting non-sleeping spaces into bedrooms. Suspicions of future bad faith are legally insufficient to revoke a valid permit. Regarding the Floor Area Ratio (FAR), the Appellant continues to ask the Board to enforce a restriction that simply does not exist in the text of the North University NCCD ordinance. The ordinance establishes FAR limits for single-family and duplex uses, but is conspicuously silent regarding three-unit residential use. Because the Appellant has failed to identify any actual error in the application of the zoning regulations, and has failed to present any new evidence to alter the Board's understanding of these facts, they have not met their burden of proof. III. Building Orientation Issue Not Properly Before the Board The reconsideration request raises arguments regarding building orientation that were not properly before the Board in the original appeal and therefore cannot serve as a basis for reconsideration. The building orientation issue was not identified as a distinct ground in the original appeal or preserved as a specific issue for Board determination. Reconsideration is not a mechanism to introduce new arguments or reframe the appeal after a decision has been rendered; accordingly, this issue is procedurally improper and should not be considered. Even if the Board were to consider the argument, the request mischaracterizes the nature of the NCCD provisions. Part 7 of the North University NCCD provides that new development "should" respect traditional patterns. This language is directory rather than mandatory. Throughout the Land Development Code and the NCCD, enforceable standards are consistently expressed using “must” or “shall,” whereas “should” reflects guidance and policy intent. This contrast in wording is deliberate and meaningful. Furthermore, the Part 7 statement is qualitative and does not establish a measurable compliance standard, functioning as a design guideline rather than a regulatory provision that could independently justify permit denial. ITEM08/2-PERMIT HOLDERIII. Non-Compliant Intent of the Appellant The Appellant’s own request for reconsideration inadvertently reveals a strategic intent that is fundamentally at odds with the established scope of the Board of Adjustment’s authority and the strict procedural requirements of the City of Austin. By stating in Section F that the purpose of the request is to seek "clarification" regarding the administrative approval and to ensure a "documented understanding" of the project’s use, the Appellant admits that he is not presenting new, material evidence that was unavailable at the time of the initial hearing. Instead, the Appellant’s stated intent is to use the reconsideration process as a vehicle to compel the Board to re-examine the Building Official’s technical characterization of the project—a matter that was already vetted, documented, and affirmed during the March 9 proceeding. Because the Appellant’s goal is to solicit additional administrative analysis rather than to correct a clerical error or present previously undiscovered facts, the request is non-compliant with Article V, Section (F)(4) of the BOA Rules of Procedure, which prohibits using reconsideration as a tool for simple disagreement or repetitive litigation. IV. Response to Procedural Allegations (Ex Parte Communication) The Appellant’s allegation regarding Board Member Brian Poteet’s participation is procedurally barred and legally insufficient for the following specific reasons: • Appellant’s Direct Participation and Full Knowledge: The Appellant was not merely a passive observer but a primary participant in the February 11, 2026 meeting, where he personally presented the very concerns and materials now labeled as "outside the record". Consequently, the Appellant possessed full knowledge of Member Poteet's presence and the information exchanged for nearly a month prior to the March 9 hearing. • Waiver of Objection: Despite having every opportunity to raise a procedural objection or request a recusal at the start of the March 9 hearing, the Appellant remained silent. By proceeding with the hearing while in possession of this information, the Appellant effectively waived any right to challenge Member Poteet’s participation after an unfavorable ruling was issued. • Asymmetric Prejudice to the Applicant: It is the Applicant—not the Appellant—who suffered potential prejudice. While the Appellant had a private forum to present his arguments to a Board member without the Applicant being present or aware of the discussion, the Applicant was kept entirely in the dark regarding this interaction. The Appellant cannot now claim "prejudice" from an event he himself orchestrated and failed to disclose to the other side. • Statutory Compliance: As the information presented was admittedly "substantially similar" to the formal submissions eventually provided to the full Board, no undisclosed "material information" influenced the decision. The Board proceeded with a valid nine- ITEM08/3-PERMIT HOLDERmember body, satisfying the 75% statutory participation requirement under Texas Local Government Code § 211.008. IV. The HOME Ordinance as the Controlling Authority for Three-Unit Residential FAR(additional information for Board’s Consideration) The Appellant’s request for reconsideration relies on a fundamentally flawed interpretation of the relationship between the North University NCCD and city-wide zoning. Our position remains that the HOME (Housing Options for Middle-Income Empowerment) Ordinance is the sole regulatory authority governing the development standards for this project. • Timeline of Regulatory Vacuum: The North University NCCD was adopted in 2004 and amended in 2011—long before the "Three-Unit Residential Use" category was conceived by the City Council. At the time of the NCCD’s drafting, this land-use category did not exist, and therefore, no specific standards were ever deliberated or codfied for it within the district. • The Principle of Explicit Silence: The NCCD functions as a "combining district" that only overrides the general Land Development Code (LDC) where it provides specific, alternative standards. Because the NCCD provides FAR limits only for single-family and duplex uses and is conspicuously silent regarding three-unit residential use, the City must default to the general LDC. • Mandatory vs. Directory Standards: The Appellant attempts to elevate advisory language in the NCCD—stating that development "should" respect traditional patterns— into a mandatory requirement. However, enforceable standards like FAR are consistently expressed using "must" or "shall". • Prohibition on Administrative Inference: As affirmed by Austin Development Services, the Board is legally prohibited from "inferring" that a duplex limit (0.40) should apply to a separate and distinct three-unit land use. To do so would be to create a restriction that simply does not exist in the law. • Affirmation of the HOME FAR Standard: The City of Austin has officially determined that for three-unit projects within the North University NCCD, the HOME Ordinance's FAR is the legally operative limit. The Board has already reviewed this determination and found no error in the Building Official’s application of this standard. V. Conclusion The Appellant has not satisfied the stringent burden required to justify reconsidering a decided case. Because the Appellant has failed to present any new, specific, or clarified evidence as explicitly required by Article V, Section (F)(4) of the BOA Rules of Procedure, this request is procedurally deficient. Respondent respectfully requests that the Board dismiss this Request for Reconsideration outright due to the Appellant's failure to meet the "new evidence" threshold, and ITEM08/4-PERMIT HOLDERrule that the Board's original determination affirming the permit shall stand as the final action on this matter. Respondent respectfully requests that the Board DENY the Request for Reconsideration and reaffirm the issuance of Permit No. 2025-140201 PR. PRAYER Respectfully submitted, LEONID MURASHKOVSKIY Counsel for Respondent/Property Owner Texas Bar No. 24075411 Leonid Murashkovskiy, PLLC 16801 Addison Rd, Suite 124, Addison, Texas 75001 ITEM08/5-PERMIT HOLDER ITEM08/6-PERMIT HOLDERITEM08/7-PERMIT HOLDERITEM08/8-PERMIT HOLDERITEM08/9-PERMIT HOLDERITEM08/10-PERMIT HOLDERITEM08/11-PERMIT HOLDERITEM08/12-PERMIT HOLDERITEM08/13-PERMIT HOLDERITEM08/14-PERMIT HOLDERITEM08/15-PERMIT HOLDERITEM08/16-PERMIT HOLDERITEM08/17-PERMIT HOLDERITEM08/18-PERMIT HOLDERITEM08/19-PERMIT HOLDERITEM08/20-PERMIT HOLDERITEM08/21-PERMIT HOLDERITEM08/22-PERMIT HOLDERITEM08/23-PERMIT HOLDERITEM08/24-PERMIT HOLDERITEM08/25-PERMIT HOLDERITEM08/26-PERMIT HOLDER